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Court of Criminal Appeal 16 June 2023

R v Sharrouf

[2023] NSWCCA 137

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW CROWN APPEAL SINGLE VICTIM MARRIED TO RESPONDENT NOTIONAL ACCUMULATION AND CONCURRENCE TOTALITY DIAGNOSIS OF SCHIZOPHRENIA

Citation: R v Sharrouf [2023] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 16 June 2023
Judges: Price J, Wilson J, Dhanji J

Background

The respondent was tried by judge alone in the District Court on 40 counts of domestic violence and sexual offences against his then wife, committed between 2007 and 2008. He was convicted of 24 counts, including eight counts of sexual intercourse without consent, one count of aggravated sexual intercourse without consent, assault occasioning actual bodily harm, attempted choking, and use of an offensive weapon. He was arrested in 2020, more than a decade after the offences occurred.

On 5 August 2022, the District Court sentenced the respondent to an aggregate term of 10 years' imprisonment with a non-parole period of 5 years. For four of the counts, including indecent assault and common assault, the sentencing judge imposed convictions with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending that the sentence was inadequate in several respects. The respondent accepted two of the three grounds of appeal but argued the Court should exercise its residual discretion to decline to intervene.

  • Whether the sentencing judge erred in assessing the objective seriousness of three assault counts (counts 9, 16 and 26) by treating their spontaneity and short duration as mitigating the objective gravity of the offences
  • Whether the sentencing judge erred in imposing convictions with no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for four domestic violence counts
  • Whether the aggregate sentence of 10 years with a 5-year non-parole period was manifestly inadequate
  • Whether the Court should exercise its residual discretion to decline to intervene despite finding error
  • How the respondent's diagnosis of schizophrenia, abusive childhood, and relative youth should affect moral culpability, general and specific deterrence, and the re-sentence

Decision

Ground 1: Objective seriousness. The Court of Criminal Appeal held that the sentencing judge erred in finding counts 9, 16 and 26 fell below the mid-range of objective seriousness. The spontaneity and short duration of those offences did not reduce their objective gravity. By treating those factors as mitigating objective seriousness, the judge acted on wrong principle and understated the seriousness of the offences. Price J and Wilson J found error on this ground; Dhanji J declined to state a concluded view.

Ground 2: Section 10A convictions with no further penalty. All three judges agreed the s 10A orders were inappropriate. The Court emphasised that in domestic violence cases, imposing a conviction with no further penalty should be rare. Neither the respondent's subjective circumstances nor the principle of totality justified sentences that failed to recognise the harm caused to the victim.

Ground 3: Manifest inadequacy. The Court unanimously found the aggregate sentence and non-parole period were plainly unjust. The indicative sentences for several individual counts were themselves manifestly inadequate, and simultaneous offending did not require wholly concurrent sentences. The Court found it was open to the sentencing judge to give some weight to the respondent's psychiatric symptoms at the time of offending as moderating his moral culpability, and to reduce the emphasis on general deterrence accordingly. However, the judges differed on the treatment of the respondent's youth: Price J and Wilson J held that youth and immaturity did not mitigate the repetitive violent offending, while Dhanji J took the view that the respondent's youth was interwoven with his exposure to domestic violence as a child and needed to be understood as part of the totality of considerations.

Residual discretion. The Court declined to exercise its residual discretion to refrain from intervening. The manifest inadequacy of the sentence was such that it was appropriate to re-sentence. On re-sentence, the Court (by majority) imposed an aggregate term of 14 years' imprisonment with a non-parole period of 9 years, commencing from the original date. Dhanji J would have imposed a somewhat lesser sentence, giving greater weight to rehabilitation and less to specific deterrence, but did not articulate a separate figure given his was the minority view.

Orders Made

  • The appeal was allowed
  • The sentence imposed in the District Court on 5 August 2022 was quashed
  • The respondent was re-sentenced to an aggregate term of 14 years' imprisonment with a non-parole period of 9 years (Price J at [266]; Wilson J at [269]; Dhanji J dissenting as to the length of re-sentence at [282])

Key Takeaways

  • Spontaneity and short duration of individual offences do not, of themselves, reduce the objective seriousness of domestic violence and sexual assault offences; treating those factors as doing so constitutes an error of principle.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), imposing a conviction with no further penalty in a domestic violence context should be rare; the principle of totality does not authorise sentences that fail to reflect the harm suffered by the victim.
  • A diagnosis of schizophrenia and a history of childhood abuse may, where supported by evidence, reduce a respondent's moral culpability and diminish the weight given to general deterrence and denunciation, but the Court was divided on whether youth and immaturity similarly mitigate repetitive violent offending in a domestic violence context.
  • Concurrent sentences are not automatically required simply because offences occurred simultaneously; notional accumulation may be appropriate to reflect the full criminality involved.
  • Where an aggregate sentence is so manifestly inadequate that it does not reflect the totality of the criminality, the residual discretion to decline to intervene on a Crown appeal will generally not be exercised.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 33B, 37, 59, 61, 61I, 61J, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 4A, 10A
- Criminal Appeal Act 1912 (NSW) s 5D
- Crimes and Courts Legislation Amendment Act 2006 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Mill v The Queen (1988) 166 CLR 59
- Postiglione v The Queen (1997) 187 CLR 295; [1997] HCA 26
- Munda v Western Australia (2013) 249 CLR 600
- CMB v Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499
- Cherry v R [2017] NSWCCA 150
- Kennedy v R [2022] NSWCCA 215
- Magro v R [2020] NSWCCA 25
- BP v R [2010] NSWCCA 159
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Kochai v R [2023] NSWCCA 116
- Lee v R [2023] NSWCCA 70
- JG v R [2023] NSWCCA 33
- DH v R [2022] NSWCCA 200
- Kerr v R [2016] NSWCCA 218
- Baines v R [2016] NSWCCA 132
- Cowling v R [2015] NSWCCA 213
- IE v R (2008) 183 A Crim R 150
- JT v R [2011] NSWCCA 128